Johuan Nathan Bunting v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ar05-551

DIVISION II

JOHUAN NATHAN BUNTING

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 05-551

January 4, 2006

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY

[NO. CR 2003-3357]

HONORABLE JOHN W. LANGSTON,

JUDGE

AFFIRMED

Terry Crabtree, Judge

A jury in Pulaski County found appellant Johuan Nathan Bunting guilty of first-degree battery and aggravated robbery, with a sentence enhancement for employing a firearm in committing the latter offense. As a result, he was sentenced to a total of fifty years in prison. Appellant's only argument on appeal is that the trial court erred in denying his motion for a mistrial when a witness testified that appellant was dressed in jail-house clothing at a pretrial hearing. We find no error and affirm.

On July 9, 2003, a man walked into Bobby's Country Cooking, a family-owned restaurant in southwest Little Rock, and demanded money. The owner, Terry Matyskiela, told the man that he had none. The man instantly shot Mr. Matyskiela in the chest with a nine-millimeter handgun and fled. Matsykiela was severely wounded, but he survived.

Aside from Mr. Matsykiela, the shooting was witnessed by his daughter, Chrissy Midkiff, and an employee, Barbara McIntyre. All three were shown photographic lineups during the investigation. From the first lineup she was shown, Ms. McIntyre selected one person as a look-alike, but said that he was not the perpetrator. However, she positively identified appellant as the perpetrator in the second lineup she was shown. Ms. Midkiff was unable to identify anyone from the first lineup she

viewed, but she picked out appellant's photograph in the second one, saying at the time that she was eighty-five percent certain that the photograph was of the perpetrator. Mr. Matyskiela viewed only one photo array, and he selected appellant and another man's photograph as being "possibles of the person." He said that when he saw the array he was sixty-percent certain that appellant's photograph portrayed the man who had shot him, and forty-percent sure as to the other.

Mr. Matyskiela, Ms. McIntyre, and Ms. Midkiff each testified at trial that they were positive that appellant was the man who had attempted to rob the restaurant and had shot Mr. Matyskiela. In their testimony, they also recalled seeing appellant in the courtroom at an omnibus hearing, and said that they became certain of their identification of appellant once they had seen him in person, as opposed to seeing him in the photographic arrays. Appellant's motion for a mistrial came during the testimony of Ms. Midkiff concerning her sighting of appellant at the pretrial hearing:

PROSECUTRIX: Before the hearing started, did you go into the court room?

WITNESS: Yes.

PROSECUTRIX: And what was the court room, what was going on? Was there a jury

trial going on?

WITNESS: They were - - The room was full of people. They were inmates I guess you

would, all along the bench.

PROSECUTRIX: What made you think they were inmates?

WITNESS: Just by the outfits they were in.

PROSECUTRIX: Okay. And what kind of outfits did they have on?

WITNESS: Some had orange and some had blue.

PROSCUTRIX: Okay.

WITNESS: Jump suits I guess you call `em.

PROSECUTRIX: All right. And were there people out here in the audience?

WITNESS: Yes. The room was packed.

PROSECUTRIX: Okay. Were there lawyer looking people also within the, I guess

within these gates?

WITNESS: There, the room was full. There were all kinds of people in here.

PROSECUTRIX: Okay. Now, before you came into the court room were you told by

anyone that the Defendant would - - The person that shot your dad would definitely

be in here?

WITNESS: No.

PROSECUTRIX: Were you told by anyone what he may or may not have on?

WITNESS: No.

PROSECUTRIX: Did you make any assumptions about what he might or might not

be wearing that day?

WITNESS: I didn't know.

PROSECUTRIX: Did you not assume that he might be in prison garb?

WITNESS: He could have been. I honestly, I didn't think about it. I didn't know what

he'd be in. If it just would be regular clothes or if it would be a prison outfit. I didn't

know.

PROSECUTRIX: You didn't know.

WITNESS: I didn't know.

PROSECUTRIX: First time to ever testify in a hearing?

WITNESS: First time I've ever been in a court room.

PROSECUTRIX: Okay. Were there - - You mentioned earlier there were inmates, what

you believed to be inmates because of their, what they had on. Were there more than

one?

WITNESS: Yes.

PROSECUTRIX: About how many would you guess?

WITNESS: They were all, all along - - They filled the benches over there.

PROSECUTRIX: More than one black male?

WITNESS: Yes.

PROSECUTRIX: By this point, by December 3rd, did you know this person's name?

WITNESS: I believe so.

PROSECUTRIX: Okay. And well, let me back up. Did you, when you came into this

packed court room, did you see the person that had shot your father?

WITNESS: Yes.

PROSECUTRIX: Where'd you see him?

WITNESS: He was on the bench with the others.

PROSECUTRIX: With the other inmates?

WITNESS: Yes.

At this point, appellant objected and moved for a mistrial. Appellant argued that the testimony placing him among inmates dressed in a jump suit was improper because it revealed that he had been incarcerated. Counsel further argued that the testimony was so prejudicial that it could not be cured by an admonition to the jury. The prosecutrix argued that it would not surprise the jury to learn that appellant had been incarcerated at the time of a pretrial hearing held some fourteen months in advance of trial, and that she was only trying to point out that the witness was able to identify appellant without any preconceived notions in a crowded courtroom among a number of similarly-situated persons. After a brief recess, the trial court sustained appellant's objection to the testimony but denied the request for a mistrial, saying:

And Mr. Luppen's raising the point that why even have a person appear in trial in civilian clothes if they're going to refer to the fact that he was incarcerated at one point. . . . . This is a little bit different situation. In this case we have a direct reference to the Defendant being in Court in an orange jump suit and sitting with other inmates. It first came out during the, when the witness testified to that when asked where he was. In looking at it, counsel, I believe, I'm not sure, but even if it were not in the testimony, this jury's aware that this Defendant was arrested at some point. That's been brought out during this trial I believe. If not, the jury would be aware of it anyway. There's been no reference to the Defendant being in custody during this trial. So, Defense counsel's arguments about well, it shows that he's not able to make bond or make bail, so forth, of course, doesn't, it is not really convincing to the Court because the jury doesn't have any indication that he is in custody in this trial. And being in custody during trial gives an appearance of being guilty, and so I don't believe that really, really applies. In looking at the overall situation, and the testimony in the matter and the way this came about, the Court very well considers that a mistrial is a very, very drastic remedy. And in this case it should not be granted.

Appellant assigns the trial court's ruling as error. A mistrial is a drastic remedy which should be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing the trial or where any possible prejudice cannot be removed by admonishing the jury orsome other curative relief. Smith v. State, 85 Ark. App. 475, 157 S.W.3d 566 (2004). An admonition to the jury usually cures a prejudicial statement, unless it is so patently inflammatory that justice cannot be served by continuing the trial. Hudson v. State, 85 Ark. App. 85, 146 S.W.3d 380 (2004). The trial court is in the best position to decide the issue of prejudice because of its first-hand observation. Moore v. State, ___ Ark. App. ___, ___ S.W.2d ___ (Sept. 22, 2004). Thus the trial court has wide discretion in granting or denying a motion for a mistrial, and absent an abuse of that discretion, the trial court's decision to deny a motion for a mistrial will not be disturbed. Id. Among the factors we consider on appeal in determining whether or not a trial court abused its discretion are whether the prosecutor deliberately induced a prejudicial response and whether an admonition to the jury could have cured any resulting prejudice. Moore v. State, 355 Ark. 657, 144 S.W.3d 260 (2004). The supreme court has held that, although some prejudice is typically present where mention of an appellant's prior incarceration has been made, an admonition to the jury usually cures a prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing trial. Hamilton v. State, 348 Ark. 532, 74 S.W.3d 615 (2002). In this case, the prosecution purposely elicited the testimony as part of an ill-conceived effort to show that the witness's identification of appellant in the courtroom was fair. However, we cannot conclude that the testimony was so patently inflammatory that it could not have been cured by an admonition to the jury. The incarceration referred to was tied to the present charges, not another offense or a previous conviction. The jury obviously knew that appellant had been arrested and was aware that the pretrial hearing took place long before trial, such that appellant's incarceration at that point in time was not damaging, nor even surprising. See Banks v. State, 315 Ark. 666, 869 S.W.2d 700 (1994) (not surprising for a jury to learn that a defendant charged with a serious crime was a resident of the county jail before trial). It has been repeatedly held that, where an admonition to the jury could have cured the situation, but no such admonition is requested, this court will not say that the trial court's decision to deny the mistrial motion was an abuse of discretion. Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004). We find no such abuse here and affirm.

Affirmed.

Pittman, C.J., and Griffen, J., agree.